United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT UNITED STATES DISTRICT JUDGE
matter comes before the Court upon the Report and
Recommendation of Magistrate Judge William H. Baughman, Jr.
The Report and Recommendation (ECF # 87) recommends that the
Motion of Plaintiff for attorneys fees and costs (ECF #69) be
granted and that the Motion of Defendants Martin Flask,
Michael McGrath, and Patrick Stephens for attorneys fees (ECF
#72) be denied. For the reasons set forth below, the Report
and Recommendation is of Magistrate Judge Baughman is
and Factual Background
Jerome Barrow filed this action against the City of Cleveland
and three individual defendants asserting multiple
discrimination claims under state and federal law. No.
motions to dismiss or for summary judgment were filed by any
of the defendants and the case proceeded to
trial. After the Plaintiff rested his case, the
Court granted Defendants' Rule 50 motion for judgment as
a matter of law as to punitive damages and the claims against
the individual defendants. The jury returned a verdict in
favor of Plaintiff and against the City on Plaintiffs
retaliation claim and awarded $59, 900 in compensatory
damages. Following entry of judgment, Plaintiff filed his
motion for Costs and Attorneys Fees (ECF #69) seeking $107,
569.53 in attorneys fees and costs in the amount of $4,
266.15. Defendants also moved for attorneys fees and costs on
the grounds that the individual defendants prevailed on the
claims against them and Plaintiff only prevailed on one his
claims. (ECF #72) The competing motions for attorneys fees
and costs were referred to Magistrate Judge Baughman for a
report and recommendation.
Judge Baughman issued his Report and Recommendation on June
1. 2018 finding that Plaintiff was the prevailing party and.
as such was, entitled to costs pursuant to Fed.R.Civ.P.
54(d). Further, he determined that Defendants did not raise
any objections to the costs requested that would overcome the
presumption in favor of awarding the fees and costs to
Plaintiff. Magistrate Judge Baughman recommends that the
Court award Plaintiff the $4, 266.15 in fees and costs that
he requested. Magistrate Judge Baughman analyzed
Defendants' request for attorneys fees and costs under 42
U.S.C. § 1988 which permits the award of attorney fees
and costs to prevailing parties in cases brought under
certain civil rights statutes. Attorneys fees and costs may
be awarded to prevailing defendants only if the Court finds
that Plaintiffs claims are frivolous. See Fox v.
Vice, 563 U.S. 826 (2011). In this case, Magistrate
Judge Baughman determined that since a defendant may receive
only the portion of his fees that he would not have paid but
for the frivolous claim, the relevant inquiry is whether the
costs would have been incurred in the absence of the
frivolous allegations. See Fox. 563 U.S. at 838.
After analyzing the claims asserted in this case. Magistrate
Baughman determined that evidence concerning discrimination
and harassment had a bearing on the claim of retaliation. He
noted the strong reasons to credit the view that the
dismissed claims were not frivolously brought or unreasonably
maintained, especially because the Defendants never filed a
dispositive motion to remove any claim prior to trial and the
jury verdict for Plaintiff on his retaliation claim, which
shared a common core of facts with the dismissed claims.
Consistent with the relevant standard outlined by the Supreme
Court in Fox. Magistrate Judge Baughman recommends
finding that there is an interrelationship between the
dismissed charges and the claim that resulted in a favorable
jury verdict and that Defendants have not shown entitlement
to that portion of their costs or fees clearly and solely
attributable to even what they assert to be frivolous claims.
Accordingly. Magistrate Judge Baughman recommends that
Plaintiffs Motion for Attorneys Fees and Costs be granted in
its entirety and that Defendants' Motion for Attorney
Fees and Costs be denied. Defendants have filed a timely
objection to the Report and Recommendation.
applicable district court standard of review for a
magistrate's report and recommendation depends upon
whether objections were made to that report. When objections
are made to a report and recommendation of a magistrate
judge, the district court reviews the case de novo.
Fed. R. Civ.. P. 72(b), Dacas Nursing Support Sys., Inc.
v. NLRB, 7 F.3d 511 (6thCir. 1993). As
Defendants have filed timely objections, this Court will
review the Report and Recommendation de novo.
assert six general objections to the Report and
Recommendation. First, Defendants complain that the Court
granted Plaintiffs motion to file a sur-reply brief before
Defendants' time to object had expired. Defendants
suffered no harm from the filing of Plaintiffs sur-reply. If
Defendants really wanted to respond to the sur-reply they
could have moved to file a sur-sur-reply, although none of
the extra briefing was necessary. The sur-reply simply took
issue with Defendants* characterization of the Fox
case. As the Magistrate Judge and this Court are entirely
capable of reading and interpreting Fox on their
own. Defendants" first objection is meaningless.
second objection complains that the Magistrate Judge did not
treat the individual defendants separately or as prevailing
parties and may seek to impose fees or costs on them. The
Report and Recommendation adequately distinguishes between
the City and the individual defendants. Moreover, the
Judgment entered following the verdict clearly reflects that
"all costs, including jury charges, are to be paid by
Defendant City of Cleveland." (ECF #64) The Court will
be sure to specify in this Order that any costs and attorney
fees are to be assessed to and paid by the City of Cleveland,
not the individual defendants.
third and fifth objections relate to concerns with the amount
of attorneys fees and costs requested by Plaintiff and to
which Magistrate Judge Baughman stated that Defendants made
no objection. Magistrate Judge Baughman determined that the
fees requested by Plaintiff were reasonable using the
"lodestar" analysis. Defendants now state that they
object to Plaintiffs attorney Avery Friedman's hourly
rate as well as the number of hours charged by Mr. Friedman.
Mr. Friedman requests payment for approximately 139 hours of
his time over three years, at a rate starting at $772.50 per
hour in 2016 to $795.68 per hour in 2018, which includes 1
hour for preparing the fee request. Mr. Friedman notes that
he exercised business judgment to determine that 66 time
entries were non-chargeable, representing 36% of the total
time expended. As Magistrate Judge Baughman explained, there
appears to be no clear occasions of duplicative. irrelevant,
or unexplained time charges. In comparison. Defendants sought
recovery for approximately 533 hours of attorney time for
preparing the same case. Mr. Friedman was much more
efficient. While the billing rates for the City of Cleveland
Law Department attorneys were much less than Mr.
Friedman's rate -the two more senior lawyers were $300
per hour, one less experienced lawyer was $175 and one newly
minted lawyer was $150 per hour-that does not make Mr.
Friedman's rate unreasonable. Mr Friedman is one of the
preeminent civil rights lawyers in the Cleveland area and is
a nationally known and recognized expert in the field of
civil rights litigation. This Court has previously approved a
rate for Mr. Friedman of $750 per hour in 2016 finding that
Mr. Friedman has unquestionably earned his rate and "it
is more than reasonable for an attorney of his stature in
this field."' Lofton v. Hinton, 1:15 CV
486. 2015 WL 4496214 (N.D. Ohio March 23. 2016)
Defendants' argument that the rate approved by the Court
in Hinton is not relevant here because
Hinton was a housing case is misplaced. The field of
civil rights litigation involves several federal statutes and
areas of application. Mr. Friedman practices in all of them
and has spent his long career learning and practicing in this
broad area. As Defendants learned, he is effective. The Court
finds that the rates requested by Mr. Friedman in this case
are reasonable based upon his years of experience and
also object to Plaintiffs request for the costs of a
deposition taken by Plaintiff of Defendant Patrick Stevens in
St. Augustine Florida. Specifically. Defendants contend that
the deposition could have been taken over the telephone or.
if done in person in Florida, the Plaintiff should not have
accompanied Mr. Friedman. The parties were required, to take
the deposition in Florida because Mr. Stevens, although a
named defendant, apparently refused to appear in Cleveland
for the deposition. Further, it was not unreasonable for the
Plaintiff to attend the deposition because it may have been
necessary to consult with the Plaintiff during the deposition
regarding events and testimony. The costs requested for the
Florida deposition are appropriate.
Defendants fourth and sixth objections pertain to the
Magistrate Judge's finding that the allegedly frivolous
claims are intertwined with the successful claim such that
Defendants cannot be awarded attorneys fees or the fees
awarded to Plaintiff reduced. Review of the law and the
complaint in this action convince this Court that Magistrate
Judge Baughman has correctly applied the relevant law to the
facts in this case. Magistrate Judge Baughman correctly
decided that Defendants were not entitled to attorneys fees
and costs in this case. Further, the Court is capable of making
the determination of whether the allegedly frivolous claims
and the successful claim share a common core of operative
facts such that the majority of time spent defending the
dismissed claims is indivisible from the time spent defending
the one meritorious claim on its own-without argument of
counsel or cites to the record. Here both Magistrate Judge
Baughman and this Court agree that the dismissed claims share
a common core of operative facts with the successful
retaliation claim. In these cases the prevailing defendant is
not entitled to attorneys fees and costs.
upon a de novo review of the motions and all related
filings, the Report and Recommendation and Defendants'
Objection, it is clear that Magistrate Judge Baughman"s
findings are correct and consistent with applicable law. As
such, the Report and Recommendation is adopted. The Motion of
Defendants Martin Flask. Michael McGrath. and Patrick
Stephens for attorneys fees and Costs (ECF #72) is denied.
Plaintiffs Motion for Attorneys Fees in the amount
SI07.569.53 of and Costs in the amount of $4, 266.1 5 (ECF